Immigration news and insights provided by Paul Szeto LLC - a former INS attorney and an experienced immigration practitioner - who can be reached at 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888,http://www.1visa1.com/(All information is not legal advice and is subject to change without prior notice.)

Wednesday, November 2, 2011

L-1 visa petitions for applicants starting a new U.S. office

Immigration Act Section 101(a)(15)(L) allows a multinational company to temporarily transfer foreign nationals with management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer. Petitioners seeking to classify foreigners as intracompany transferees must file an I-129 petition with a USCIS service center for a determination. There are many complicated issues involved in the adjudication of an L-1 visa petition. For examples, the petitioner must establish that there is a qualifying relationship between the U.S. business entity and the foreign operation which employs the beneficiary abroad; the foreign national must have been employed abroad by the related foreign entity for at least one of the last three years in an executive, managerial, or specialized knowledge capacity; the U.S. business and the foreign company must continue to do business in the U.S. and a foreign country, either directly or through a related business entity such a parent, branch, subsidiary, etc.

The L-1 visa category has been identified by the government as one with vulnerabilities. For example, in a 2006 report prepared by the Inspector General’s Office of the Department of Homeland Security, there were concerns raised about whether foreign nationals will be coming to the U.S. to perform the duties in an L-1 executive or manager capacity. The government was also concerned about the definition of “specialized knowledge” being too broad. Finally, the government found it difficult to verify a petitioner’s foreign operations and recommended measures to start investigations in foreign countries. Consequently, each L-1 petition is subject to very strict scrutiny by the USCIS.

For L-1A managers or executives who are transferred to the U.S. to start a new office, their visa applications are subject to even stricter examination by the adjudication officers. The government adjudicators often question the veracity of such petitions and issue lengthy requests for further evidence requiring the production of extensive amount of documentation such as lease agreements, company organizational charts, employee information and job duties, financial documents, business documents such as invoices and purchase orders, etc. Petitioners often find it difficult to respond to such requests because, by definition, a new office usually does not have a history of business transactions, a team of professional employees, or even a fixed office location. To the extent that the petitioner has the burden to provide the documentation required to establish eligibility for L classification, failure to satisfy a request for additional evidence often would lead to a denial of the petition.

The issue is further complicated by the modern-day technologies and different means of conducting business. It is often possible for a new business operation to take off without plenty of office space and a team of employees. All one needs is a telephone, a fax machine, a telephone and an internet connection. Many well-known U.S. corporations started humbly in the founder’s garage. When foreign companies start a new branch office in the U.S., oftentimes they want to keep costs and overhead low. Before there is sufficient business volume to justify further expansion, these companies are hesitant to hire a team of professionals or sign a long term lease for office and warehouse spaces. However, when an L-1 visa petition is adjudicated, these nuisances generally cannot be used as excuses for failure to produce the required documents.

The American Immigration Lawyers Association has brought these issues to the attention of the USCIS in a recent meeting, and the USCIS has agreed to take AILA’s recommendations into consideration. The USCIS also commented that each case will be adjudicated based on its particular set of facts. For example, the evidentiary requirements for a request of a one-year extension of L-1 status and a request for a two-year extension of status will be different. Similarly, the evidence required to approve an import-export business’ petition will also be different from the evidence required to approve a chemical manufacturing company. The USCIS is also currently reviewing and revising its templates for L-1 Requests for Evidence. It is hopeful that positive changes will be made soon. One important issue to note is that, it is not wise to exaggerate the expansion plans or inflate the projected business revenues in the initial petition, as the USCIS will hold them against the petitioner during the adjudication of a subsequent extension petition.